Wednesday, 26 April 2017

Sukkah and Free Exercise Clause

From RRW

Anti-Semitism Or Ignorance?

Dear Trustees:

Given the review of our Association's rules now in progress, I write in the hope the following issue may be resolved in an
amicable manner prior to next fall. If requested, I am willing to discuss this
matter in person with the Trustees.

Please
consider the
following reason underpinning the free exercise of religion clause found
in the
First Amendment to the United States Constitution and then consider our
Association's rule regarding the building of a Succah. Ultimately, the
rights granted a citizen of the United States by the American
Constitution
cannot be obviated by a State. County, City, or Village. This is most
definitely the case with regard to our Association.

The Free Exercise
Clause provides that "Congress shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof."

"The Free
Exercise Clause commits government itself to religious tolerance, and upon even
slight suspicion that proposals for state intervention stem from animosity to
religion or distrust of it practices, all officials must pause to remember
their own high duty to the Constitution and to the rights it secures... Accordingly,
Legislators may not devise mechanisms, overt or disguised to persecute or
oppress a religion or its practice...Under the constitution, a law that is not
neutral, but targets a specific action, and that does not apply generally to
all people, but targets a specific group, must be justified by a compelling
governmental interest and narrowly tailored to advance that interest.”

Justice Kennedy in Church of the
Lukumi-Babalu Aye v. Hialeah

This famous case
brought before the United States Supreme Court by the church in question,
concerned the City of Hialeah outlawing the religious rite of animal sacrifice,
the slaughtering of goats, practiced by the Lukumi-Babalu Aye. The Supreme
Court ruled in favor of the Church with Justice Kennedy explaining the basis
for that ruling.

As you may know, the
construction of a Succah is a religious commandment found in the Hebrew
Scriptures. Leviticus 23:42, 43 “You shall dwell in booths for
seven days. All who are native Israelites shall dwell in booths that your
generations may know that I made the children of Israel dwell in booths when I
brought them out of the land of Egypt: I am the L-rd your G-d. ”

Last
year, I attempted
to build a Succah to fulfill the requirements of my faith. I informed
our Association's Manager of my intent and he sent me the rule of the
Association regarding this matter.
I indicated I needed, because of my family requirements, to build a
Succah
slightly larger than the rules allowed and suggested the powers that be
should
have no problem with this modification. Subsequently, I was barraged by
neighbors telling me that doing what I wished was prohibited and that I
would
upset my neighbors. I therefore decided not to proceed, for as a new
resident, and
in light of the negativity which arose in the community upon my arrival,
I
wanted to start off on a cooperative note with my neighbors, this, in
spite of
the fact that as a Rabbi and more importantly, as a Jew, I was not fully
able
to observe the commandment of G-d.

I
informed our Manager that I would not be building a Succah.
Nevertheless, the very next day, the Manager sent me a formal violation
for building the Succah. That same day an
inspector from the Township came by and claimed I was building an
illegal
structure. All that he saw was the frame the workers I hired had started
to
construct. In spite of my protestations that we had decided not to build
and
that the frame will be removed by the workers, he issued a
cease-and-desist
order telling me I would be receiving a subpoena to appear in court in a
few
days and face the possibility of a fine of $2,000.00. I took the
necessary
steps to clarify this matter with the Township. The subpoena was not
issued.

I
asked the inspector
how he learned of this situation. His response - the management of your
Association had called in a complaint. I immediately contacted our
Manager asking why he had done this as the day before I informed him I
was not going to
build a Succah. He has yet to reply. I do have in my possession the
emails of
both our Manager and myself regarding this situation.

I find the actions of our Manager quite bizarre. I would appreciate the Trustees clarifying whether
this is the procedure our Manager has been instructed to follow in such
situations.

It was my intent, and
I advised our Manager of this fact, to build a permanent Succah, as has been the
religious tradition of Jews for thousands of years, on the concrete patio in
the rear of my home. It would blend in perfectly with my home and would not be
seen by anyone except my neighbors to the right, that is, if they elected to
peer over the hedge that divides our properties. They would see a screened in
porch which blends in perfectly with the design and color of my home. Surely if
the United States Constitution protects an individual’s religious right to
slaughter a goat on his property, the erection of an unobtrusive structure such
as a Succah, as mandated by the Hebrew Scriptures, which, according to both
Judaism and Christianity define Jewish religious practice, is protected as
well.

May
I add a caveat to
the above to provide you with a clearer perspective? I note that folks,
according to our Association's rules, are permitted to decorate their
homes with lights and other decorations
for the Christmas - Chanukah season. I’m sure you realize this is not a
religious injunction of either Christianity or Judaism. Unlike the
Biblical
commandment to build a Succah, if one’s home is not adorned with such
decorations, it does not pose any religious difficulty for the faithful.
These
decorations are placed on the front façade of the home and are quite
visible to
the passerby. They need not blend with the color or nature of the
façade.